Maryland AG Urges SCOTUS to Reject Challenge to 'Assault Weapon' Ban

AP Photo/Brittainy Newman

It's no surprise that Maryland Attorney General Anthony Brown is opposing a cert petition asking the Supreme Court to take up a challenge to the state's ban on so-called assault weapons. Anti-gunners are desperate to keep Bianchi v. Brown and similar challenges from being heard by the Court, at least with its current makeup. But in his brief in opposition to the cert request Brown inadvertently makes a pretty strong argument in favor of the Court's intervention. 

Brown's argument against accepting Bianchi is tthreefold. First, he argues that the Fourth Circuit has already ruled the state's ban constitutional, albeit before the Bruen decision came down. Secondly, he asserts it's premature for the Supreme Court to grant cert when this case, which was sent back down to the Fourth Circuit for a do-over in light of Bruen's holdings, has yet to be decided a second time by the Fourth Circuit Court of Appeals. Finally, Brown contends that, even under Bruen's "text, history, and tradition" test the state's ban on commonly owned semi-automatic firearms comports with the Second Amendment. 

While Brown insists that the Supreme Court should have no interest in Bianchi, he can't get around the fact that SCOTUS granted cert to the case once before, vacating the Fourth Circuit's decision to dismiss the case and remanding the case back to the appellate court. That's a pretty clear indication that SCOTUS is very interested in the lawsuit, and that it found the Fourth Circuit's decision to dismiss problematic. 

Consistent with the standard that Rule 11 recites,this Court has granted certiorari before judgment only in cases that are of “great constitutional significance”or have “extraordinary national importance for other reasons.” ... Petitioners have not explained why their bare desire to own the particular weapons banned by Maryland compels this Court to deviate from its standard procedure and address this desire on an expedited basis. With regard to self-defense in particular—“the central component of the [Second Amendment] right itself,” Heller, 554U.S. at 599—petitioners have failed to explain how their ability to defend themselves has been compromised, or why they cannot defend themselves with the many other firearms that remain legal under Maryland law. Indeed, petitioners have never even sought any form of interim relief with respect to the ban they challenge now—a fact that belies any claim of urgency, and that only underscores the inappropriateness of certiorari before judgment.

I'd say a lawsuit dealing with bans on commonly owned firearms is absolutely of "great constitutional significance", wouldn't you? And in Heller, the Supreme Court rejected the idea that just because some firearms are still available to purchase and possess, bans on other classes of firearms are okay. Brown's argument doesn't get any better from there. 

Less than two years have passed since this Court decided Bruen. During that time, only one court of appeals has addressed the decision’s application to assault weapons bans. See Bevis v. City of Naperville, Illinois, 85 F.4th 1175 (7thCir. 2023). And it has done so only in reviewing decisions whether to grant preliminary injunctive relief, not any final judgment on the merits. See id. at 1187(stressing that “we are not here today to rule definitively on the constitutionality of the Act or any of the municipal ordinances” because “[t]he only issue before us concerns preliminary injunctive relief ”). This Court thus lacks the benefit of even a single court of appeals decision fully addressing the panoply of issues potentially implicated by the question whether assault weapons bans are constitutional after Bruen. Even if the Court were to grant certiorari and vacate the district court’s decision in this case, for instance, it would still have to remand for that court to consider such fact-intensive issues as the suitability of assault weapons for self-defense and whether those weapons are in common use for that purpose. As part of that process, the State would be entitled to test and rebut the mass of reports and secondary sources that petitioners have cited in this Court, but that the district court has never considered.

Once again, there's a major flaw in Brown's argument. The Court has never held that the Second Amendment only protects firearms that are used in self-defense. Quite the opposite, in fact. SCOTUS has repeatedly stated that the language of the Second Amendment protects those arms that are in common use for lawful purposes including, but not limited to, self-defense. There are tens of millions of AR-15s and other semi-automatic long guns in the United States, and they are rarely used in crimes of any kind. The vast majority of the folks who possess one or more of these firearms do own them for lawful purposes, whether hunting, target shooting, competitive shooting, or self-defense. 

It's true that the Seventh Circuit is the only appellate court to issue a ruling on these types of bans since the Bruen decision was handed down, but that's at least partly because the appellate courts have tried to keep these cases away from Supreme Court review. The Fourth Circuit, for instance, decided to wait more than a year before suddenly deciding that it was going to hear Bianchi en banc, even though a three-judge panel had already heard oral arguments and was close to issuing its opinion, which likely would have found the state's gun ban unconstitutional. The lower courts have been playing all kinds of games with challenges to "assault weapons" bans, which is a compelling reason for the Court to take up the issue now.  

Finally, Brown asserts that the Fourth Circuit got it right when it upheld Maryland's ban in the Kolbe case, where they ruled that AR-15s and other semi-automatic long guns are "like" machine guns, and therefore unprotected by the Second Amendment. 

... nothing in Bruen supports the notion that the decision repudiated Heller’s statement regarding “weapons that are most useful in military service—M-16 rifles and the like,” Heller, 554 U.S. at 627, or repudiated Kolbe’s holding that Maryland’s ban is constitutional because such weapons “may be banned,”849 F.3d at 131. Kolbe does not conflict with any decision of this Court but, rather, hews to its considered pronouncements in Heller.

Brown is simply incorrect here. The most succinct case to point to is Caetano, in which the Supreme Court rejected Massachusetts' ban on stun guns. 

he court offered three explanations to support its holding that the Second Amendment does not extend to stun guns. First, the court explained that stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.” Id., at 781, 26 N. E. 3d, at 693. This is inconsistent with Heller’s clear statement that the Second Amendment “extends . . . to . . . arms . . . that were not in existence at the time of the founding.” 554 U. S., at 582. 

The court next asked whether stun guns are “dangerous per se at common law and unusual,” 470 Mass., at 781, 26 N. E. 3d, at 694, in an attempt to apply one “important limitation on the right to keep and carry arms,” Heller, 554 U. S., at 627; see ibid. (referring to “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ”). In so doing, the court concluded that stun guns are “unusual” because they are “a thoroughly modern invention.” 470 Mass., at 781, 26 N. E. 3d, at 693–694. By equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” the court’s second explanation is the same as the first; it is inconsistent with Heller for the same reason.

Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” 470 Mass., at 781, 26 N. E. 3d, at 694. But Heller rejected the proposition “that only those weapons useful in warfare are protected.” 

If stun guns, which aren't nearly as common as AR-15s and other semi-automatic firearms, are protected, then why wouldn't the guns banned under Maryland's prohibition on "assault weapons" also be covered? Brown's entire argument boils down to his (and the Fourth Circuit's) belief that those firearms are "like" M-16s; an absurd take that ignores both common sense and federal statutes, which treat fully automatic firearms very differently than their semi-automatic counterparts. 

The Supreme Court could decide that it's premature to grant cert to Bianchi while the Fourth Circuit is preparing its en banc decision, but it's also been fully briefed by the plaintiffs on the appalling games being played by the appellate court. The justices aren't set to consider the cert request until its May 16th conference, so we're still at least a month away from learning what, if any, action the Court will take, but after reading Brown's brief in opposition I don't think he's offered a compelling argument for SCOTUS to stay away from the case, much less to uphold the gun ban in question.